Defendants usually make a CPLR 3211 motion to dismiss at the outset of the case and file it together with a Request for Judicial Intervention (RJI). In that situation, a defendant can simply file the motion without contacting the court in advance. When a defendant makes a later motion to dismiss, though, it is best to check the rules, because you may have to first request a conference.
On November 14, 2019, in Dwyer v. Avo Construction LLC, Index No. 53784/2019, a case we previously wrote about here, Westchester Commercial Division Justice Gretchen Walsh summarily denied a post-RJI motion to dismiss by writing on the notice of motion: “Motion denied based on Defendants’ counsel’s failure to obtain authorization to file this motion under Commercial Division Rule 24.”
Rule 24, titled “Advance Notice of Motions,” provides that “[p]rior to the making or filing of a motion, counsel for the moving party shall advise the Court in writing (no more than two pages) on notice to opposing counsel outlining the issue(s) in dispute and requesting a telephone conference.” Further, “[i]f a cross-motion is contemplated, a similar motion notice letter shall be forwarded to the court and counsel” and “[s]uch correspondence shall not be considered by the court in reaching its decision on the merits of the motion.” The court will then schedule a conference, Rule 24(d), and, “[i]f the matter cannot be resolved, the parties shall set a briefing schedule for the motion which shall be approved by the court.” Rule 24(f).
Notably, Rule 24 does “not apply to disclosure disputes covered by Rule 14 nor to dispositive motions pursuant to CPLR 3211, 3212 or 3213 made at the time of the filing of the Request for Judicial Intervention or after discovery is complete.” Rule 24(a).
Because most dispositive motions are made either at the time of the filing of an RJI or after the completion of discovery, counsel may overlook the need to comply with this rule when filing a dispositive motion at another time. (Rule 24 also does not apply to motions to be relieved as counsel, for pro hac vice admission, for reargument or in limine.)
One last step: Rule 24(g) requires that, “[o]n the face of all notices of motion and orders to show cause, there shall be a statement that there has been compliance with this rule.” That way, the judge immediately knows whether to read the motion papers or, as Justice Walsh did, dispose of the motion with a written notation that the motion is denied for failure to comply with Rule 24.
Takeaway: When faced with an unusual procedural situation – like a post-RJI / pre-Note-of-Issue dispositive motion – read the rules, even if you think you know what they say.